“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
Through the Looking Glass, Chapter 6
Few judicial decisions provoke the frenzy of editorials, newspaper articles, opinion pieces, facebook status updates and dinner table debates as were prompted by that of the Employment Tribunal last Friday in Aslam, Farrar and Others v Uber. Fewer still can boast references to both Shakespeare and Milton, nor deliver such a joy to read (assuming you are not, in fact, the Respondents’ lawyers). Volunteering to write about the judgment shortly after its publication on Friday afternoon, it took little time before I realised this piece would be one among a crowded chorus of views.
Among the maelstrom, The Sunday Times (£) was concerned it would herald the end of the end of the ‘gig’ economy, the Guardian argued that avoiding paying benefits was not a fair route to profits, while the Financial Times (£) approved the forging of a ‘middle way’ for fair treatment of workers and the company. For some the decision was seismic, potentially ground-breaking; for others it could spell tragedy; a lone voice thought it would change very little. Rightsinfo have provided an excellent plain English summary here.
To recap: the claimants, both Uber drivers, argued that Uber failed to pay the minimum wage and failed to provide paid leave under the National Minimum Wage Act 1998 and Employment Rights Act 1996 respectively. The Employment Tribunal was tasked with determining whether the claimants are “workers” under the relevant legislation, and if so, what counts as “work” and/or “working time”.
(i) Employment Status
The Tribunal’s analysis began robustly, in a paragraph that (like much of the judgment) is worth repeating in significant part;
“In the first place, we have been struck by the remarkable lengths to which Uber has gone in order to compel agreement with its (perhaps we should say its lawyers’) description of itself and with its analysis of the legal relationships between [itself], the drivers and the passengers. Any organisation … resorting in its documentation to fictions, twisted language and even brand new terminology merits, we think, a degree of scepticism. Reflecting on the Respondents’ general case, and on the grimly loyal evidence of [Uber Regional Manager] Ms Bertram in particular, we cannot help being reminded of Queen Gertrude’s most celebrated line: The lady doth protest too much, methinks.”
Next, the Tribunal cited with approval the North California District Court’s March 2015 finding;
“Uber does not simply sell software; it sells rides. Uber is no more a “technology company” than Yellow Cab is a “technology company” because it uses CB radios to dispatch taxi cabs.”
The Tribunal questioned Uber’s grasp of practical reality in drawing up its written terms, stating;
“The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous.”
The Tribunal further advanced its reasoning in vivid terms:
“…the logic of Uber’s case becomes all the more difficult as it is developed….Uber’s case is that the driver enters into a binding agreement with a person whose identity he does not know (and will never know) and who does not know and will never know his identity, to undertake a journey to a destination not told to him until the journey begins, by a route prescribed by a stranger to the contract…from which he is not free to depart (at least not without risk), for a fee which (a) is set by the stranger, and (b) is not known by the passenger (who is only told the total to be paid), (c) is calculated by the stranger (as a percentage of the total sum) and (d) is paid to the stranger…The absurdity of these propositions speaks for itself.”
Concluding that the only sensible interpretation is that the drivers were working for Uber, and not the other way round, the Tribunal relied on particular on the fact that Uber:
- retains absolute discretion whether to accept or decline bookings;
- interviews and recruits drivers;
- controls and excludes drivers from key information such as passengers’ details and intended destination;
- sets the route;
- requires drivers, on pain of punishment, to accept and/or not cancel trips;
- fixes the non-negotiable fare;
- imposes conditions on car choice;
- subjects drivers to a rating system, leading to performance management and disciplinary procedures;
- assumes the risk of loss in the case of fraudulent passengers;
- handles passenger complaints; and
- retains the right to change drivers’ terms unilaterally.
Unequal bargaining positions and “Armies of lawyers”
The Tribunal was “entirely satisfied that the drivers are recruited and retained by Uber to enable it to operate its transportation business”, holding that Uber was precluded from relying upon its “carefully crafted documentation” because it bore no relation to reality.
“As is often the case, the problem stems at least in part from the unequal bargaining positions of the contracting parties… Many Uber drivers (a substantial proportion of whom, we understand, do not speak English as their first language) will not be accustomed to reading and interpreting dense legal documents couched in impenetrable prose. This is, we think, an excellent illustration of the phenomenon of… “armies of lawyers” contriving documents in their clients’ interests which simply misrepresent the true rights and obligations on both sides. “
(ii) “Work”/”Working time”
As to what counts as “work” and “working time”, Uber argued that even if a contract existed between the driver and Uber, the driver was not ‘working’ until he was carrying a passenger. This was rejected on the basis that;
“it confuses the services which the passenger desires with the work which Uber requires of its drivers in order to deliver that service. It is essential to Uber’s business to maintain a pool of drivers who can be called upon as and when a demand for driving services arises…To be confident of satisfying demand, it must, at any one time, have some of its drivers carrying passengers and some waiting for the opportunity to do so. Being available is an essential part of the service which the driver renders to Uber. If we may borrow another well-known literary line: They also serve who only stand and wait.”
Finally, the Tribunal found that a driver’s working time starts as soon as he is within his territory, has the Uber App switched on and is ready and willing to accept trips and ends as soon as one or more of those conditions ceases to apply.
As the quotes above illustrate, Judge Snelson’s judgment was as excoriating in its criticism of Uber’s legal arguments as it was detailed in its reasoning. The Tribunal was keen to emphasise, however, that nothing contained in its decision should be taken as doubting that Uber could have devised a business model not involving them employing drivers (para 97).
Fittingly, I first considered my response as I was driven home on Friday evening by Uber. On the ramifications of the ruling, my driver remained tight-lipped. This was hardly surprising – he had already received an email from Uber insisting, “today’s decision only affects two individuals and Uber will be appealing it. There will be no change to your partnership with Uber in light of this decision and we will continue to support the overwhelming majority of drivers who tell us that they use the Uber app to be their own boss and choose when and where to drive.”
For this, Uber has been accused of misleading its drivers. Uber customers were updated separately on Saturday in an email citing a “recent poll of 1,000 drivers which found that the overwhelming majority prefer being self-employed and joined Uber precisely because they want to be their own boss. Drivers want the freedom to decide where, when and for how long to drive: being classified as workers could deprive them of the personal flexibility they value.” The public perception battle rages on.
In the midst of concerns that Brexit will result in weakened employment rights, in recent months businesses practices have faced intense scrutiny. The Guardian investigation into Sports Direct prompted a severely critical report published by the Business, Innovation and Skills Select Committee in July this year. In early October, Theresa May announced a review into modern working. Weeks later it was announced that HMRC, who are currently investigating the delivery company Hermes for failing to pay the minimum wage, would launch a specialist unit to investigate companies who refuse to offer workers employment protections by using agency staff or calling them self employed. In a few weeks a London Employment Tribunal will hear the first of four cases brought by cycle couriers against their companies CitySpring, Excel, Addison Lee and eCourier.
The Uber judgment is unlikely to be the last word.